When the MOB tried to call for assistance over the VHF, the skipper told him it wasn't possible because of distance off-shore. Lie. Another boat nearby could respond and/or relay a "May Day" if one was called and someone could receive it.
Later the news story says the skipper tried to call another boat but got no response. Did he call a "MayDay"? That would be required as a member of the crew was in clear and eminent danger. We don't know, but based on the other information, my suspicion is not, and I wonder, based on other information, if any call was really made.
Another boat might hear you. But the likelihood of anyone being in VHF range isn't high. If a non-lucid person tried to call for assistance, a valid simple explanation would be, "we are too far offshore to reach anyone."
The original article states they contacted Chris Parker as quickly as possible and had him contact the CG. Doesn't sound like they were trying to not call the CG - why wouldn't they continue on their course until much closer to destination, then claim they searched extensively but fruitlessly and tried to raise other boats unsuccessfully the whole time on VHF?
I think it was declared somewhere that the boat didn't have HF (SSB), so as they approached Florida many many hours later, they prolly got in touch with Chris Parker via VHF or cell phone.
They contacted Parker 32 hours later, after continuing their course, but the winds were stated to be 5 knots, and when the CG sent out a plane, they saw it. They weren't far from the original location Pontious went overboard. They were not VHF-close to Florida. Either they really did have an SSB and tried to use it earlier, and just took a while to raise Parker (makes sense - why would you relay a call to Parker over VHF instead of directly to CG?!), or someone came into range to relay their VHF call.
So if you have no SSB, and nobody responds to VHF (if any call was really made) why not trigger the beacon?
I can't think of any good reason not to (other than to ensure the body is never recovered, or if the skipper believed it simply wasn't worth any attempt to save a the guy in the water, basically handing him a death sentence.).
Or that you're majorly shaken up by a recent attempt on your life, and it takes you half an hour to get your situational awareness back? By that point throwing out an EPIRB is a waste of a few hundred dollars - why are you marking the spot where the MOB isn't?
There's a critical point here: the point is not to find a plausible chain of events in which the captain sounds grossly negligent. In addition to clarifying questions of fact to the degree possible (obviously it will be critical that all the crew's stories stay consistent under questioning), the jury must be convinced beyond a reasonable doubt that there is NO plausible chain of events in which the captain is NOT negligent.